IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 472 of 2008()
1. KAMALAKSHY, RESIDING AT
... Petitioner
2. REMINI, RESIDING AT DO. DO.
Vs
1. SIVAN, S/O.NARAYANA PANICKER,
... Respondent
For Petitioner :SRI.L.MOHANAN
For Respondent :SRI. AYYAPPAN SANKAR(CAVEATOR)
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :25/07/2008
O R D E R
K.P. Balachandran, J.
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R.S.A.No.472 of 2008
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JUDGMENT
This is Regular Second Appeal by the legal
representatives of the deceased mortgagee/the sole
defendant in O.S.No.651/91 on the file of the
Munsiff’s Court, Thiruvananthapuram assailing the
concurrent verdicts of the courts below, negativing
the claim of the mortgagee to kudikidappu right on
redemption by virtue of Explanation IV to Section 2
(25) of the Kerala Land Reforms Act.
2. Counsel for the appellants submits that in
view of the decision of this Court in S.N.D.P.,
Poothotta Branch v. Ammini (ILR 2008 (2) Kerala 99)
the evidence adduced before the Land Tribunal
cannot be looked into by the civil court unless
such evidence had been adduced before the civil
court or let in, in the manner provided under the
Evidence Act and so, therefore, there is absolutely
no evidence regarding the income and on the basis
RSA 472/08 2
of the income of the mortgagee, the claim advanced
for kudikidappu right should not have been
negatived. All the same, it has been proved by
production of Exhibit A5 by the plaintiff/
respondent that the appellants own three cents of
land in Manacadu Village within the city of
Thiruvananthapuram. Counsel for the appellants
further submits that in view of the decision
aforesaid, it is true that documents produced
before the Land Tribunal cannot as such form part
of evidence in the case, but, all the same, by a
registered document, the property purchased under
Exhibit A5 was sold by the appellants on 4.5.1977,
namely, Sale Deed No.557/1977 and that ought to
have been permitted to be produced and therefore,
at least an opportunity be granted to him to
produce the documents, as otherwise, the valid
rights of the appellants to kudikidappu will be
deprived of to them.
RSA 472/08 3
3. Counsel for the respondent seriously opposes
the submission on the ground that the appellants,
in order to entitle themselves to kudikidappu right
on redemption, have to prove also that their annual
income does not exceed Rs.2000/-, in view of the
explanation to Section 2(25) of the Kerala Land
Reforms Act.
4. The appellate court has observed that the
predecessor in interest of the appellants has given
evidence before the Land Tribunal that his monthly
income is Rs.300/- per month, but, however,
according to the counsel for the appellants, the
said admission cannot be taken into account, as the
evidence of the predecessor in interest of the
appellants was being recorded by the Land Tribunal
in view of the decision in S.N.D.P.’s case (cited
supra).
5. All the same, it is worthy to note that the
defendant in the suit has not entered the witness
box at all during trial of the suit and the
RSA 472/08 4
plaintiff cannot compel him also to appear before
court to tender evidence, so as to enable him being
confronted with the prior statement given before
the Land Tribunal. The burden is on the mortgagee,
who claims right under Explanation IV to Section 2
(25) of the Kerala Land Reforms Act, to establish
both the ingredients for application of Explanation
IV, namely, that he is not having land in excess of
what is mentioned in Explanation IV and also that
his income does not exceed Rs.2,000/- per annum.
If the contention of the appellant’s counsel is
accepted, for want of any evidence on the side of
the mortgagee/kudikidappukaran, who is the
predecessor in interest of the present appellants,
it has to be held that he had not established his
contention so as to obtain right conferred under
explanation IV to Section 2(25) of the Kerala Land
Reforms Act. Thus, there is no meaning in providing
an opportunity as requested for by the counsel for
the appellants to produce certified copy of the
RSA 472/08 5
document to show that Exhibit A5 property purchased
by the defendant in the suit had been sold
subsequently.
6. It is also brought to my notice by the
learned counsel for the respondent that as far as
this case is concerned, the decision in S.N.D.P.’s
case (cited supra) will have no application at all,
as this Court was dealing with a first appeal,
wherein, the question considered was as to whether
the trial court was justified in looking into the
evidence that was adduced before the Land Tribunal.
This is a case wherein, by reason of Section 125(6)
of the Kerala Land Reforms Act, the first appellate
court was entitled to look into the evidence
adduced before the Land Tribunal as well for the
reason that for the purpose of appeal, the decision
of the Land Tribunal, on reference under Section
125(3), will also be deemed to be part of the
finding of the civil court and without looking into
the evidence adduced before the Land Tribunal, the
RSA 472/08 6
appellate court cannot consider the correctness of
the finding entered into by the Land Tribunal in
the appeal filed against the decree in the suit.
7. The position canvassed for the respondent
is tenable. Viewed in that way also, there is no
merit at all in the contentions advanced on behalf
of the appellants. There is, thus, no merit at all
in this appeal and there is no question of law and
much less, any substantial question of law that
arises for consideration by this Court in this
Regular Second Appeal.
This Regular Second Appeal, in the circumstances,
is dismissed in limine, refusing admission.
25th July, 2008 (K.P.Balachandran, Judge)
tkv